McKenzie v McKenzie (1971)

English Family Law

McKenzie v McKenzie
‘His Only Friend’ by Briton Riviere

English history suggests that when faced with litigation, each party must rely upon, and thus retain, the services of a qualified legal advocate, whether by way of barrister, or as is now more common, a practising solicitor equipped with a modicum of experience in the legal field at hand; however in the tail end of the 1960s, the playing field was somewhat levelled by a case involving two former immigrants, both left fighting to dissolve what was clearly a dysfunctional and abusive marriage.

Having arrived in Great Britain from Jamaica in 1956, the now appellant husband had at the point of the original hearing, fathered six children with his respondent wife, who herself had settled with him there in 1957. In 1965, the respondent initiated divorce proceedings on grounds that the appellant had subjected her and their five remaining children to repeated molestation and inhumane treatment throughout the course of their relationship, while the appellant cited his own cruel treatment at the hands of the respondent.

In the first instance, the Lambeth magistrate’s court held that the appellant was to cease his molestation and depart the family home, to which the appellant acquiesced, only for the respondent to later cite further cruelty and adultery, while the appellant also claimed adultery on the part of the respondent, an action which had left her pregnant and requesting a psychiatric referral for a hysterectomy on grounds that she was now depressed and suffering prolonged emotional stress.

While the matter itself became increasingly complex, the appellant was unexpectedly denied his previously administered legal aid, and so when the trial began in 1969, he was found without legal representation. To remedy this obvious dilemma, the previous solicitors assigned a young Australian barrister to escort and attend the numerous court sessions, while occasionally offering notes and verbal guidance as the appellant attempted to argue his position in a matter that the judge himself had later expressed was:

“[Q]uite a difficult case, quite apart from the difficulties of communication which are inevitable because of the rapidity and the sometimes inaudible way in which the evidence was given on both sides….”

However, for reasons best known to himself, the judge soon ordered the young barrister to remove himself from the appellant’s side, on grounds that unless the man’s name appeared on the court records, he was to remain unable to participate in the proceedings in any way, a decision which left the appellant alone and thus unable to fully comprehend what was being said, and how best to assert his own opinions before the court.

Having lost the case, the appellant then challenged the judgement before the Court of Appeal on grounds that the removal of the barrister was in many respects an obstruction of justice, and that by doing so, the judge had erred in his decision, while the appellant also argued that he had been denied his right to present his own claim of adultery against the respondent.

Here, the court turned to Collier v Hicks, in which Tenterden CJ had concisely explained that:

“Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice…”

Thus the court unanimously upheld the appeal and ordered a new trial, while also holding that:

“[L]itigants should be seen to have all available aid in conducting cases in court surroundings, which must of their nature to them seem both difficult and strange.”

A decision that has since altered the landscape of countless court hearings, while granting those daunted at the prospect of judicial scrutiny, and unable to retain a legal representative, the perfect opportunity to bolster their argument and thereby presence by the hand and words of a learned supporter, should they see fit. 

British Chiropractic Association v Singh (2011)

English Tort Law

Chiropractic Association v Singh
‘Leaning Right’ by Steve Mills

Damages for libel and the freedom of expression, rely upon distinct terms of meaning for their preservation or application. And so on this occasion, the subjective opinion of an industry insider becomes the target of a writ that while not uncommon, does little to protect the reputation of those evaluated.

Whilst writing a tabloid article, the appellant doctor wrote of the respondents:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence.”

In retaliation, the respondents issued a writ for defamation on grounds that when publishing the article, the appellant had implied on the basis of fact, that the respondents lacked any credible evidence with which to support its claims. During the trial, the judge elected to apply a ‘fact’ based test, as opposed to one of subjective opinion, whereupon the jury found against the appellant and damages were set, along with injunctive remedy.

During the appeal, the Court reexamined the actions of the judge when choosing to adopt a factual premise upon which to rest the defence, while exploring the meaning of art.10 of the European Convention on Human Rights (Freedom of expression), with particular reference to De Haes and Gijsels v Belgium, in which the Court found that a journalist accused of libellous commentary was ultimately found to have merely expressed a ‘value judgment’ based upon collective facts relating to the field under discussion.

Here, the appellant had recently co-authored a book with an established authority on the history of chiropractic medicine, who had found through direct application of the methods common to chiropractic, that despite seventy experimental trials, there was no evidence to support the claims forwarded by the respondents, hence the commentary made within the article.

With these ‘facts’ in hand, the Court held that while honest in his intentions, the trial judge had erred in treating subjective opinion and reasoned commentary as statements of fact, and that by doing so had in essence contravened the rights contained under art.10, and reinforced the notion that challenges of those in authority were subject to punishment or forfeiture.

It was for this reason that the Court reversed the previous decision, while citing the words of Judge Easterbrook in Underwager v Salter, who had clarified how:

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation . . . more papers, more discussion, better data, and more satisfactory models – not larger awards of images – mark the path towards superior understanding of the world around us.”

While reminding the Court that language should not be used to distort, dilute or obscure the purpose of clarity when establishing liability for defamation or libel.

Barrett v Ministry of Defence

English Tort Law

Barrett v Ministry of Defence
Image: ‘Fra Balestrand’ by Even Ulving

Self-intoxication when subject to unenforced regulatory powers, while seemingly harmless in the early stages, becomes less a voluntary act than an inevitability when boredom and recklessness result in a fatality. Sadly on this occasion, the celebratory rituals of a naval base exposed a regime based upon irresponsibility rather than organised discipline.

In litigation by writ during early 1990, the widow of a naval airman sought damages for negligence arising from a breach of duty of care through the Fatal Accidents Act 1976 and the Law Reform Miscellaneous Provisions Act 1934, after her late husband was found dead in his bunk.

In late January 1988, the deceased was celebrating his 30th birthday and pending promotion while stationed at the Barduffos Royal Naval Air Station, Norway, a base known for its leniency towards off-duty drinking, despite recognised preventative guidelines and clear definitions as per s.28 of the Naval Discipline Act 1957, which read:

“A person is drunk . . . if owing to the influence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he might be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.”

While art.1810 of the Queen’s Regulations for the Royal Navy 1967 also explained how:

“It is the particular duty of all officers, fleet chief petty officers, chief petty officers, petty officers and leading ratings actively to discourage drunkenness, overindulgence in alcohol and drug abuse by naval personnel both on board and ashore. Should a man appear to be suffering from any of these abuses they are immediately to take appropriate action to prevent any likely breaches of discipline, possible injury or fatality, including medical assistance if it is available.”

On the night before his death, the deceased had consumed enough alcohol to lapse into unconsciousness shortly before midnight, after which he was taken to his room and left in the recovery position. It was during the following three hours that he was visited only three times, after which he had vomited and asphyxiated through inhalation of the vomitus. Within the base codes of conduct was guidance for dealing with inebriated servicemen, within which it read:

“(i) Keep the offender out of distance of officers or senior ratings so that he cannot commit himself by striking or by insubordination. Avoid altercation, (ii) Have him examined by the duty M.O. (iii) Should he be in a state of collapse, make sure he does not lie on his back so that he can suffocate if he vomits. See that he is sighted every few minutes.”

In the first hearing, the judge ruled that the appellants had, by virtue of their inability to enforce the regulations and codes of conduct, failed to provide a sufficient duty of care when managing the deceased and awarded damages of around £214,000, with a one-third reduction for the contributory negligence through over-consumption of alcohol.

Presented to the Court of Appeal on grounds of erring in law when comparing the Queen’s Regulations with the Highway Code and thereby over-extending the liability of the Ministry when passing judgment, the Court reexamined the facts, along with the threshold of culpability, whereupon it held that while the appellants had failed to uphold a reasonable standard of care, the choice to drink excessively was undoubtedly the primary cause of death, at which point the Court reversed the proportion of liability in favour of the appellants thus reducing the damages to roughly £71,000.

Abouzaid v Mothercare Ltd

English Tort Law

Abouzaid v Mothercare Ltd
Image: ‘Twinkling Eye’ by Pavel Guzenko

Manufacturer negligence and the powers of consumer statute are both central to a claim for damages, when a leading retailer is held liable for a loss of earnings through serious physical injury.

In 1990, the respondent’s eye was struck by an elasticated strap forming part of a foot warmer product known as ‘Cosytoes’, which was manufactured under the store’s own brand range. The extent of the damage was unknown at the time, however over the period that followed, the respondent was diagnosed with shallow temporal half-detachment of the retina, which in turn led to virtual blindness and total lack of central vision.

Some ten years later, the respondent sought damages under negligence, and through the powers afforded them under the Consumer Protection Act 1987. In defence, the appellants relied upon the investigative report of a highly qualified consultant engineer, whose notes confirmed:

“I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for a cosytoes could pose a hazard to the eyes of children or adults, since the potential risk had not at that time been recognised even by experts in the safety of such childcare products.”

However, the engineer also stressed that:

“I found that for me it was quite easy to fasten the straps correctly from behind the seat unit. Attempting this from the front of the seat was more difficult, because it was not possible to see the fastening. It also required putting my head close to the seat in order for my arms to reach round behind it. I noticed that the elastic did have a tendency to pull the fastener through my fingers, and it could easily have slipped.”

Contrastingly, when transposing the requirements of the 1987 Act, Parliament was obliged to observe the terms of Directive 85/374/EEC in which the preamble outlined:

“Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances…

[W]hereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances…”

In the first hearing, the judge found in favour of the respondent on grounds that embraced both manufacturer negligence and the presence of a defect, as described in s.2(1) of the Consumer Protection Act 1987, which reads:

“(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes safety, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.”

Upon appeal, the Court reexamined the previous decision, and revisited the argument that what was evidentially unsafe in 2000 was not deemed harmful in 1990, in light of there being no recorded incidents of that nature upon which to rely at the time. With reference again to the consultant engineer’s notes, the Court emphasised how he had also stated:

“I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident.”

And that despite a lack of recorded industry data with which to determine the safety of the product, there was little to explain how consumer awareness had remained static over the preceding decade, with particular reference drawn again to s.5.1.2 of his report, which itself remarked:

“[T]he level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.”

It was for these reasons that the Court agreed with the essence of the earlier judge’s findings, and that the level of damages awarded were an accurate representation of the loss suffered through such a simple error in quality control and user protection.

R v Stephenson

English Criminal Law

R v Stephenson
Image: ‘The Hay Bales’ by Roger Bansemer

Subjective ‘recklessness’ and the complexities of mental illness, are given equal weight when a charge of arson is levelled against a man who while apologetic for his actions, was astute enough to undertake, and become convicted of burglary, an act which in itself paradoxically requires a degree of foreseeability.

In the winter of 1977, the appellant trespassed upon farmland before climbing into a large straw stack to fall asleep. Suffering from the cold, the appellant decided to use the straw to build a small fire from which to keep warm. Unfortunately the fire quickly spread, before catching light to a Nissen hut containing farming equipment, resulting in damages of around £3,500.

Having fled the scene, he was later arrested, whereupon he immediately apologised and explained that the whole incident was an accident, and that he never intended to cause such destruction. When indicted, he was charged with burglary under s.9(1) of the Theft Act 1968 and arson under s.1(1)(3) of the Criminal Damage Act 1971, yet at trial, the appellant failed to give any evidence aside from the medical testimony of a consultant psychiatrist, who confirmed that the appellant was suffering form schizophrenia, and as such, was unable to appreciate the obvious risks attached to starting a fire in such a hazardous environment.

When directing the jury, the judge used the phrase:

“[A] man is reckless if he realises that there is a risk, but nevertheless presses on regardless.”

While reiterating the words of the Appeal Court in an earlier case, which were:

“A man is reckless in the sense required (that is to say, in the sense which leads to conviction) when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act.”

At which point the jury returned a guilty verdict on both counts, whereupon the appellant took issue in the Court of Appeal on grounds of severe misdirection when applying the subjective principle of recklessness. Here, the definition of recklessness in R v Briggs was held as being that:

“A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.”

While in the Law Commission Working Paper No.31 (Codification of the Criminal Law: General Principles. The Mental Element in Crime) it was explained how:

“A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.”

Perhaps more importantly, the root definition of recklessness was outlined by Donovan J in R v Bates, when he said:

“The ordinary meaning of the word ‘reckless’ in the English language is ‘careless,’ ‘heedless,’ ‘inattentive to duty.’ Literally, of course, it means ‘without reck.’ ‘Reck’ is simply an old English word, now, perhaps, obsolete, meaning ‘heed,’ ‘concern,’ or ‘care.’”

Contrastingly, in Shawinigan Ltd v Vokins & Co Ltd the objective purpose of recklessness was defined by Megaw J who said:

“In my view, ‘reckless’ means grossly careless. Recklessness is gross carelessness – the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such, having regard to all the circumstances, that the taking of that risk would be described as ‘reckless.’”

Yet in the House of Lords, Salmon J had recently promoted the subjective definition in Herrington v British Railways Board when he explained how:

“Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation.”

And so it was with full consideration of the effects and medico-legal opinion of schizophrenia, coupled with the perhaps ironically unstable history behind ‘recklessness’, that the Court found the arson conviction unsafe when knowing the jury were unable to wholly determine the mental limitations of the appellant. It was therefore on that basis that the burglary charge remained valid, while the arson charge was quashed on principles of natural justice.

R v Roberts

English Criminal Law

R v Roberts
Image: ‘Escape’ by Anna Dart

In a case involving assault occasioning actual bodily harm, the defendant appealed on grounds that an irrational act on the part of the alleged victim was sufficient enough to constitute ‘novus actus interveniens’, thereby breaking the chain of causation and defeating the charges held against them.

In spring of 1971, the victim was an engaged twenty-something who having spent some time together at a party, had decided to join the appellant in car journey in the early hours of the morning. It was during the journey that the appellant had misled the victim as to where they were headed, after which he attempted to have sex with her, despite her immediate protestations.

Having then asked to be taken home, the appellant threatened to force her to walk back if she failed to comply with his demands, but not before he had physically assaulted her. It was at this point that he attempted to remove her coat whilst driving at speed, thereby forcing her to open the passenger door and jump out, thus suffering from mild concussion and numerous contusions as a result of her escape.

Having wandered to the nearest house, she was taken in and then safely escorted to hospital for treatment and a three-day stay with lengthy cross-examination. At trial, the judge explained to the jury that in order to find the appellant guilty, they needed to be certain that it was his actions alone that had led to the victim’s injuries, and that his efforts to disrobe her against her will were tantamount to an assault.

Using the exact words:

“[I]f you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car.”

The jury were directed as to ensure they were satisfied that the two acts were inextricably linked, and that unless they could, beyond any reasonable doubt, identify and connect them, the appellant was to escape the charge held under s.47 of the Offences Against the Person Act 1861. It was then found by the jury that despite reservations as to the weight of both parties arguments, the actions of the appellant were directly contributive to the illogical action of the victim and so the charge was upheld.

Upon appeal, the argument presented was that the judge had failed to factor the foreseeability by the appellant of the victim’s actions at the time the offence took place, and that when testing for assault, this aspect of the jury direction was absent. In response, the Court held that as was explained in R v Beech, the judge had rightly asked:

“Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?”

And that at no point in English law had a prerequisite for the defendant’s mindset existed, as to allow such an obligation would immediately nullify any conviction held against them. It was then for this salient reason that the Court dismissed the appeal and secured the original conviction.

Krell v Henry

English Contract Law

Krell v Henry
‘Summer Morning, Pall Mall’ by Bruce Yardley

Performance of a contract since frustrated through unexpected events, lies at the heart of a matter between a landlord and potential tenant, who having secured a room for the purposes of viewing a landmark event, was left unable to realise it when those plans were thwarted through a sudden cancellation.

In 1902, the appellant had negotiated the private use of a room within a property owned by the respondent, who for reasons of convenience, had recently offered the whole property for rent for a six-month period. Having been aware that the King’s Coronation procession was expected to pass along the Pall Mall, the appellant read that the respondent was offering a single room for a fixed time and sum to those wishing to take advantage of the view afforded. By means of letter, the two parties agreed upon the arrangement, after which the appellant paid by cheque, a sum of 25l with a further 50l outstanding.

Unfortunately, the date of the procession was put back, at which point the appellant refused to pay the outstanding 50l, thereby prompting the respondent to seek recovery of the balance owed, while the appellant counter-claimed for the 25l on grounds that the contract was unenforceable and the deposit due for return.

In the fist hearing, the court awarded in favour of the respondent on both counts, relying upon the principle that the contact rested upon the presence of the Coronation procession, which for the reasons stated had not occurred, and so therefore the contract was unable to be completed to the satisfaction of both parties.

Taken to the Court of Appeal, the facts were revisited, along with the earlier facts of Taylor v Caldwell, in which it was remarked:

“[W]here, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfilment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be considered a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.”

It was this approach that gave effect to the cancellation of the Coronation procession as being an event that was, as stated in Baily v De Crespigny:

“[O]f such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, and that they are not to be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happened.”

While in ‘Taylor on Evidence’ (vol II) it was also stressed that:

“It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the Court to ascertain the nature and qualities of the subject-matter of the instrument, or, in other words, to identify the persons and things to which the instrument refers, must of necessity be received.”

So it was for these fundamental reasons that the Court agreed with the previous decision, and ruled again in favour of the respondent, while reminding the court that:

“[W]hatever is the suggested implication – be it condition, as in this case, or warranty or representation – one must, in judging whether the implication ought to be made, look not only at the words of the contract, but also at the surrounding facts and the knowledge of the parties of those facts.”